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The Last Justice from the Greatest Generation

Christopher L. Eisgruber wrote the following essay for our thirty-day series on John Paul Stevens.  Eisgruber is the provost of Princeton University and the author of The Next Justice:  Repairing the Supreme Court Appointments Process (2007).  He clerked for Justice Stevens during the October 1989 Term.

During the 1989-90 term, when I clerked for Justice Stevens, all the clerks gathered for drinks on Friday afternoons.  Most of us had a long evening at our desks ahead of us, and a working weekend, too, but the happy hour was a welcome break.  At one such event, in around April, I mentioned to a clerk from another chambers that I was expecting Justice Stevens to send me the first draft of an opinion he was writing.

The clerk laughed.  He thought I was joking.  After nine months at the Court, he knew better than to think that any justice would ever write his own first drafts!  It took me ten minutes, plus earnest testimonials from my two co-clerks, to convince him that he was wrong.

He would not make the same mistake today.  Most fans of SCOTUSblog, as well as readers of the many recent retrospectives on Justice Stevens, know that Stevens has always done his own first drafts.  When I worked for him, he would write enough to make clear where he wanted to go, and then he would hand the draft to me or to one of my co-clerks so that we could finish it.  Sometimes his draft was almost complete, missing only a few footnotes.  Sometimes it was just a couple of paragraphs, enough to sketch the basic argument.

I remember one majority opinion, though, when Justice Stevens wrote a first draft that was also a final draft.  He did everything—he finished every snippet of legislative history, every footnote, and every citation.    All I had to do was cite-check it (as law clerks are wont to do, I also proposed a couple of unnecessary footnotes).

What do you think the case was about?  Abortion?  Affirmative action?  Free speech?  Due process?  Criminal procedure?

None of the above:  it was Perpich v. Department of Defense. If the name rings no bells, don’t worry.  Almost nobody remembers Perpich, a 9-0 decision that attracted little attention even at the time it was rendered.  The question presented was whether Congress had the constitutional power to authorize the president to call up the National Guard for foreign training during peacetime without first getting the consent of a state governor.

From an abstract, constitutional perspective, the case was interesting but hardly momentous.  From a personal perspective, though, it mattered to John Paul Stevens.  Perpich united two of the defining commitments in his life:  his allegiance to the Constitution and his experience serving the United States during World War II.

Perpich is, of course, not the only case where these two facets of the Justice have intersected (some would say “collided”).  The best known would have to be Texas v. Johnson, the first flag-burning case, in which Stevens invoked the “soldiers who scaled the bluff at Omaha Beach” on his way to concluding that states could criminalize flag desecration.  Not far behind would be Young v. American Mini Theatres, Inc., in which Stevens, in his first term on the Court, declared that “few of us would march our sons and daughters off to war to preserve the citizen’s right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice.”

These examples have led some liberal admirers of Justice Stevens to regard his patriotism as important to his jurisprudence only because it is a source of potential mischief in free speech cases.  That is a mistake.  Evidence of deeper influence is there even in Texas v. Johnson, if one looks closely:  Stevens says that those soldiers at Ohama Beach were fighting, not for America per se, but for certain ideas— “the ideas of liberty and equality.”

That view of America’s defining mission has guided Stevens throughout his judicial career.  In case after case, he reads the Constitution as a statement of America’s aspiration to become a government of laws rather than a government of men, a place where reason prevails over passion, prejudice, or the arbitrary exercise of power.

During the term when I clerked for Stevens, Rutan v. Republican Party of Illinois was one of the cases that exemplified his interpretive convictions. Rutan, like Perpich, resonated personally for the justice.   He made his name investigating public corruption in Illinois, and Rutan was about whether the free speech clause prohibited the Illinois governor from hiring only Republicans for state jobs.

Justice Antonin Scalia argued, in dissent, that political patronage was an American tradition which the Court ought to respect.  In a pointed concurrence, Stevens disagreed.  “The tradition that is relevant in this case is the American commitment to examine and reexamine past and present practices against the basic principles embodied in the Constitution,” he wrote.

That is the tradition that has always mattered most to Justice Stevens.  He can be as patriotic as anyone in his retelling of the American saga, but for him the core of that story is an unceasing commitment to strive for ideals that we have as yet achieved only imperfectly.

The last decade has clearly tested Stevens’ faith in American progress.  There are overtones of despair in the final sentences of his dissent from Parents Involved in Community Schools v. Seattle School District No. 1, in which the conservative majority proscribed Seattle’s voluntarily adopted desegregation plan:

The Court has changed significantly since … 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.

In 1975, Stevens believed that he and his colleagues, despite their disagreements, were partners in a shared quest for constitutional justice, for the values that defined American progress and for which he and his generation risked their lives in World War II.  After the ideological battles of the last decade, he appeared more doubtful.

The current president, though, must give Stevens hope.  Barack Obama personifies several of the ideals that have guided the jurisprudence of Justice Stevens.  How poetic that Stevens’s successor will be named by an African-American law professor who emerged from Chicago’s post-machine politics, a man whose own supporters sometimes criticize him for preferring cool reason over impassioned rhetoric.

Obama’s electoral victory made it possible to believe that America was still on a path toward the “more perfect union” that rendered both the Constitution and military service meaningful for John Paul Stevens.  It also supplied a reason to hope that history will ultimately vindicate the constitutional vision of this remarkable justice from Illinois.